IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

THOMAS EDWARDS, 

CASE NO. 2:13-CV-01068

Petitioner, CRIM. NO. 2:11-CR-229

v. 

JUDGE GREGORY L. FROST

UNITED STATES OF AMERICA, Magistrate Judge Kemp

Respondent. 

REPORT AND RECOMMENDATION

On January 17, 2013, the Court entered a judgment of conviction against Petitioner

Thomas Edwards following his plea of guilty, in this case, to a Superseding Information

charging him with one count of possession of a firearm in furtherance of a drug trafficking

crime, a violation of 18 U.S.C. §924(c), and one count of possession with intent to distribute

more than 100 marijuana plants. Pursuant to a written plea agreement (Doc. 52), the

United States agreed to dismiss a prior Superseding Indictment which alleged fifteen

counts of criminal conduct charged under 21 U.S.C. §§841, 846, and 853 and 18 U.S.C. §§2,

922, and 924, as well as multiple forfeiture counts. The Court sentenced Petitioner to 60

months of imprisonment on Count One of the Information and 38 months of imprisonment

on Count Two, to be served concurrently. See Doc. 75. The judgment and commitment

order was later amended to reflect that the sentences were to be run consecutively rather

than concurrently. See Doc. 88. Petitioner has appealed that order. See Doc. 88. That

appeal is still pending.

Petitioner appealed his sentence to the United States Court of Appeals for the Sixth

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Circuit by way of a notice of appeal filed by the Clerk. Doc. 77. The appeal was dismissed

for lack of prosecution on February 15, 2013. Doc. 78. 

On October 28, 2013, Petitioner filed a motion to vacate, set aside, or correct his

sentence pursuant to 28 U.S.C. §2255. The United States responded on March 5, 2014. 

Petitioner filed a reply on March 21, 2014, and the case is now ready to decide. Petitioner

has also filed a number of motions which will be addressed below. For the following

reasons, it will recommended that the motion to vacate be DENIED.

I. Petitioner’s Claims for Relief

Petitioner’s motion (Doc. 81) sets forth four grounds for relief. The Court will state

them here exactly as Petitioner states them in his motion. They are:

GROUND ONE: Ineffective Assistance of Counsel

Supporting facts: Counsel failed to complete the following required Actions:

Failed to File Pre-Trial Motions

Failed to give reasonable advice concerning Plea

Failed to file the appropriate Objections to the PSR

Failed to Properly raise Sentencing Mitigating Circumstances

Failed to properly file my Direct Appeal, as he told me I would

get more time if I attempted to Appeal

Failed to give me a Factual Basis for the Plea concerning the

Firearm Mandatory minimum, and the In-Operable Firearm

Failed to represent me in an Effective Manner.

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GROUND TWO: Due Process Violation Arising Out of Outrageous

Government Conduct and Prosecutorial Misconduct.

Supporting Facts: The Prosecution attempted to Ambush me in not giving

me adequate time to make objections to the PSR. Threatened if I did not

plead guilty, that I would get more time. 180-210 months to be exact, and

they also specifically stated that “The Grand Jury Indicts in two Hours”, and

I would be facing “A 13 Person Superseding Conspiracy Indictment,

involving numerous Family Members”. That If I did not plea, I “Could get

55 years” than “I will call you back to see if you will cooperate then”. The

Search Warrant was Five years old also.

GROUND THREE: My criminal History Score is Incorrect and Egregiously

Over represented by my True Criminal History.

Supporting facts: I have been given 2 points for a Prior Conviction that did

not exceed a term of Imprisonment of One year and One Month. I was

improperly given these points as the Offense occurred over 10 Years ago. My

Criminal History Score is also based off of very minor crimes, and crimes that

happened almost 15 years ago. My Criminal History Score was wrong, and

over represents my true criminal history.

GROUND FOUR: The United States District Court Committed Plain Error

When it Sentenced me.

Supporting facts: The Facts that support this claim are Clear and Obvious to

see. I was sentenced to a Consecutive Term of Imprisonment for A 924(c)

Count that involved an In-Operable Firearm. There was Booker Error

because of this Consecutive Sentence AS Well, wherein my attorney failed to

prepare for sentencing because he automatically assumed I would get the

Five Year Minimum Mandatory.

Petitioner also filed a memorandum of law in support of his motion. Doc. 82.

The United States, in its response, contends that none of the grounds for relief

alleged in the motion has merit. 

 II. Discussion

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A. Ineffective Assistance of Counsel

The right to counsel guaranteed by the Sixth Amendment is the right to effective

assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14 1970). The standard for

reviewing a claim of ineffective assistance of counsel is twofold:

First, the defendant must show that counsel's performance was deficient.

This requires showing that counsel made errors so serious that counsel was

not functioning as the “counsel” guaranteed the defendant by the sixth

Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense. This requires showing that counsel's

errors were so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Blackburn v. Foltz, 828 F.2d 1177

(6th Cir.1987). “Because of the difficulties inherent in making the evaluation, a court must

indulge a strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance; that is, the defendant must overcome the presumption

that, under the circumstances, the challenged action might be considered sound trial

strategy.” Strickland, 466 U.S. at 689.

To establish prejudice, it must be shown that there is a reasonable probability that,

but for counsel's errors, the result of the proceedings would have been different. Id. at 694.

“A reasonable probability is a probability sufficient to undermine confidence in the

outcome. Id. at 697. Because petitioner must satisfy both prongs of the Strickland test to

demonstrate ineffective assistance of counsel, if the Court determines that petitioner has

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failed to satisfy one prong, it need not consider the other. Strickland, 466 U.S. at 697. 

Petitioner has raised multiple claims of ineffective assistance of counsel. The Court

considers each of them in turn.

1. The Failure to File Pretrial Motions 

In his motion to vacate, Petitioner faults his attorney, James Gilbert, for failing to file

pretrial motions. It is not entirely clear what type of motions he refers to. In his arguments

on this subject, he identifies certain matters relating to the sentencing process, but those are

not typically viewed as “pretrial” motions, so they will be discussed later. Petitioner does

assert that “had he been given reasonable advice concerning the validity of the Search,

Validity of the Use of the in-Operable Firearm, and the Misconduct by his attorney in

relaying the threat from the government” (i.e. that he was facing a potential sentence of 55

years if he did not plead guilty), he would not have entered his plea. Broadly construed,

he appears to be claiming that Mr. Gilbert should have filed motions challenging a search

warrant and the government’s ability to base a weapons charge on an inoperable firearm.

Mr. Gilbert has submitted an affidavit which addresses some of these matters. It is

an attachment to the United States’ response (Doc. 97) to the motion to vacate. In it, he

notes that he received full discovery from the United States, which he provided to

Petitioner, and that he discussed the possibility of pretrial motions, but that he and

Petitioner agreed that as long as plea negotiations “continued in a satisfactory manner” no 

motions would be filed. Further, once Petitioner decided to plead guilty, the fact that there

would not be a trial made such motions unnecessary. The United States defends this

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decision as a matter of strategy and contends that any motion to suppress the fruits of the

warrant in question (the one issued for 1173 E. 22nd Avenue) would have been

unsuccessful. The United States also asserts that there is no requirement under 18 U.S.C.

§924(c) that the firearm used as the predicate for that offense be operable. Petitioner does

not address either of these arguments in his traverse.

The only basis which Petitioner appears to advance as a reason for suppressing the

results of the search of the 22nd Avenue location is that the warrant was “five years old.” 

As the United States points out, the search which led to the charges against Petitioner was

executed in 2009 (the superseding information refers to possession of both marijuana plants

and a firearm which occurred on April 13, 2009). There is nothing in the record to suggest

that the warrant itself was stale on that date, nor has Petitioner made any argument that

the warrant (which does not appear to be part of the record in this case) was not supported

by probable cause or was otherwise improperly issued or executed. Since there is no basis

in this record for the conclusion that a challenge to the search in question would have

succeeded, the failure to have filed a motion to suppress cannot have prejudiced Petitioner. 

See Sanders v. United States, 2014 WL 1281133, *2 (W.D.N.C. March 27, 2014)(“To establish

deficient performance and prejudice in the context of a failure to file a motion to suppress,

a petitioner must demonstrate that such a motion would have been successful”), appeal

dismissed 2014 WL 2925136 (4th Cir. June 30, 2014). 

Petitioner also argues that counsel was ineffective for not arguing that the firearm

charge could not be properly based on an inoperable weapon. However, as Respondent

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correctly notes, “the law is clear that a weapon does not need to be operable to be a

firearm,” United States v. Yannott, 42 F.3d 999, 1006 (6th Cir. 1994). This case is identical to

the situation described in Nunley v. United States, 72 F.3d 130, *2 (6th Cir. Dec. 1,

1995)(unreported), where the defendant’s “sole basis ... for his claim of ineffective

assistance [was] that counsel did not challenge count two of the indictment by raising the

issue of the inoperability of the gun specified in that count.” But, as the Court of Appeals

observed, “[b]ecause that underlying issue is without merit, counsel's failure to raise it was,

obviously, not deficient.” Id. The same is true here.

Petitioner also suggests that Mr. Gilbert was ineffective for relaying to him the

United States’ “threat” to file a superseding indictment charging him with more serious

offenses if he did not plead guilty. There are two problems with this argument. To the

extent that Petitioner might have viewed the United States’ intentions as a threat, he did

not reveal that “threat” in response to questioning at his plea hearing, nor did he claim to

have been influenced by it in his decision to plead guilty. Second, counsel would have

been remiss had he not communicated such information to Petitioner. See, e.g., Boria v.

Keane, 99 f.3d 492 (2d Cir. 1996)(finding counsel ineffective for failing to advise his client

to plead guilty and receive a sentence of 1 to 3 years when the prosecution had threatened

to obtain a superseding indictment on charges carrying penalties of 20 years to life, and

noting that under the applicable rules of professional conduct an attorney has a duty to

advise a client fully about whether a particular offer to plead guilty appears to be

desirable). Petitioner needed to know all of the possible consequences of a decision to

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accept or reject the plea bargain offered to him, and had Mr. Gilbert withheld the

prosecution’s “threat” of a superseding indictment, Petitioner would not have had a full

understanding of his situation. 

 2. Matters Relating to Sentencing

As Respondent characterizes it, the gist of the remainder of Petitioner’s ineffective

assistance of counsel claim is that his attorney failed “to provide any mitigating factors or

motions at the sentencing stage.” Respondent’s Opposition, Doc. 97, at 17. As Petitioner

phrases it in his supporting memorandum (Doc. 82, at 9), “trial counsel failed to submit the

necessary and appropriate motions seeking reduction in the Criminal H[i]story Points,

Suppression of the Evidence, Mitigating Sentencing Factors, Objections to the PSR, Failed

to Perfect the Direct Appeal through threats of an increased sentence.” After making a

number of arguments about unwarranted sentencing disparities, Petitioner appears to

claim that his sentence should not have been longer than 36 months; that his criminal

history score in the Presentence Report was not accurate; and, again, that counsel should

have raised issues about the inoperable firearm and the invalidity of the search. In his

traverse, Petitioner also claims that Mr. Gilbert was ineffective for failing to submit a

factual statement to the Probation Officer who was preparing the PSR and that counsel

should have been able to garner Petitioner credit for accepting responsibility. He also

repeats his assertion that he should not have gotten more than 18 months on the cultivation 

of marijuana count, instead of the 38 months he received.

The starting point of this discussion is what actually happened during the

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sentencing process. Petitioner pleaded guilty to two charges: possession of a firearm in

furtherance of a drug trafficking crime and possession with intent to distribute more than

100 marijuana plants. Both offenses arose from the execution of search warrant on April

13, 2009, and both counts charged him with conduct occurring only on that date. Both

charges carried a mandatory minimum sentence of five years, and, by law, any sentence

on the §924(c) charge had to be run consecutively to any sentence on the marijuana count.

The Presentence Investigation Report noted, in its recap of the offense conduct, the

following about the events of April 13, 2009. “During the course of the search of the

residence [at 1173 E. 22nd Avenue], CPD and ATF recovered marijuana, a marijuana grow

operation consisting of 184 suspected marijuana plants, cocaine, drug trafficking

paraphernalia, U.S. Currency and miscellaneous documents. Agents also recovered a

Smith And Wesson, Model SW40F, .40 caliber pistol, which was loaded with nine rounds

of .40 caliber ammunition.” The marijuana weighed 3,164.64 grams. The PSR used a

weight of 163.4 kilograms of marijuana in calculating the guideline range for the drug

charge, based on quantities of drugs, including but not limited to marijuana, found both

on April 13, 2009 and other dates, and derived a base offense level of 26 for that charge

under §2D1.1(c)(7) of the United States Sentencing Guidelines. Two points was added

based on the fact that Petitioner maintained a residence for the purpose of trafficking in

drugs; no points were deducted for acceptance of responsibility based on Petitioner’s

failure to submit a written statement acknowledging his criminal conduct. With an

adjusted offense level of 28 and a criminal history category of V, the guideline range was

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calculated at 130 to 162 months, which is substantially higher than the mandatory

minimum of 5 years applicable to the drug count. Taking into account the mandatory

sentence to be imposed on the §924(c) count, the total guideline range was 190 to 222

months. 

The Court, however, did not sentence Petitioner either to the low end of the

guideline range, as recommended by the Probation Office, or to the mandatory minimum

sentence of 5 years on each count, run consecutively. Rather, the Court granted a

substantial downward departure based on the United States’ 5K1.1 motion. The United

States noted in that motion that, even if certain issues were resolved in Petitioner’s favor,

including not increasing his base offense level on the drug charge by two points for

maintaining a residence for the purposes of drug trafficking and granting him a three-level

decrease for acceptance of responsibility, he would still be looking at a guideline range of

84-105 months on that count. The United States asked for a 33% reduction of that range,

to a base offense level of 15 and a guideline range of 37-46 months for the drug charge,

which, when added to the mandatory consecutive five-year sentence for the §924(c) charge,

would result in a new range of 97-106 months. The Court chose a sentence of 98 months. 

Although it adopted the PSR without change and did not grant Petitioner credit for

accepting responsibility, it still followed the United States’ recommendation about the new

sentencing range which was premised on Petitioner’s being given credit for accepting

responsibility.

One other factor is worth mentioning. The PSR calculated the weight of marijuana

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without apparent reference to USSG §2D1.1, Note (E), which says that “[i]n the case of an

offense involving marihuana plants, treat each plant, regardless of sex, as equivalent to 100

G of marihuana.” The 184 marijuana plants seized on April 13, 2009, would therefore

count as 18.4 kilograms, an amount which, by itself, would produce a base offense level of

16 (not 26).The PSR also erroneously described §2D1.1(c)(7) as applying when between 100

grams and 400 kilograms of marijuana are involved; in fact, it applies to weights between

100 kilograms and 400 kilograms. The United States repeated this error in its 5K1.1 motion,

although both the United States and the probation office were using the 163.4 kilogram

figure derived from all relevant conduct and not just the amount of marijuana involved in

the April 13, 2009 search. These issues will be discussed further below.

Mr. Gilbert filed a thirteen-page sentencing memorandum in this case. In it, he

objected to the PSR’s failure to credit Petitioner with accepting responsibility, noting that 

“there is not question that he accepted a complete responsibility for his actions and charges

made in the superseding Indictment” and that he demonstrated this by his proffers. He

also noted that the United States did not object to this adjustment of the offense level. See

Doc. 73, at 5. The memorandum also took issue with the two-level upward adjustment

discussed above, so that, as the 5K1.1 motion assumed, the starting point from which a

downward adjustment should be made was an offense level of 23. 

Next, Mr. Gilbert objected to all of the criminal history points assessed in the PSR. 

He advanced various reasons for doing so, including the age of some of the convictions

(more than ten years prior to the instant offense), the fact that he did not receive prison or

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jail time on some of them, the fact that some were misdemeanors which involved only the

payment of a fine, the fact that many arose from substance abuse issues, and the fact that

the charge which resulted in a two-point addition for having been convicted of a crime

while on probation was, in fact, a traffic charge, and Petitioner’s probation was not affected

by this charge. Mr. Gilbert, piggybacking on the United States’ request to reduce the

offense level to 15, suggested that it should actually be 13 (although he did not clearly state

why that should occur), and that with a criminal history category of I (based on 0 points),

the correct range for the Court’s departure from either the guideline range or the

mandatory minimum would be 12 to 18 months. That range, when added to the 5-year

mandatory sentence on the §924(c) charge, would have produced a guideline sentence

range of 72 to 78 months. The Court did not directly accept any of these arguments, but,

as noted, it did sentence Petitioner within the range suggested in the 5K1.1 motion.

It is difficult to see how the alleged errors committed by counsel contributed either

to Petitioner’s receiving a longer sentence than he should have gotten, or to his decision to

plead guilty. Mr. Gilbert did, in fact, object to almost every calculation made in the PSR. 

His objections were cogent, and Petitioner has not pointed out any additional arguments

that he believes should have been made. Although it might have been better practice for

Mr. Gilbert to have submitted a factual statement during the PSR process in order to make

out a better case for acceptance of responsibility, he could reasonably have believed that

the combination of the 5K1.1 motion and the United States’ explicit failure to object to

Petitioner’s being given credit for acceptance of responsibility cured any defect in the

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process. Further, there is no evidence that this particular omission affected the sentencing

process; quite the contrary, the Court followed the United States’ suggestion as to a

sentencing range which factored in credit for accepting responsibility. It appears that

Petitioner’s issues are more with the Court’s failure to credit most of Mr. Gilbert’s

arguments that Mr. Gilbert’s alleged failure to have presented them properly - but that

issue, of course, had to be raised on direct appeal and cannot be raised for the first time in

a motion filed under §2255, nor is it the type of error cognizable in a §2255 proceeding. See 

Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996)(“nonconstitutional claims not raised

at trial or on direct appeal are waived for collateral review except where the errors amount

to something akin to a denial of due process”). 

It is also worth noting that, in order to obtain relief from a guilty plea based on

ineffective assistance of counsel, a petitioner must “establish a reasonable probability that

[he] would have pled not guilty but for the advice of counsel....” Hodges v. Colson, 727 F.3d

517, 539 (6th Cir. 2013). Petitioner claims in his traverse that he “would not have pled guilty

to a sentence of 98 months.” Doc. 102, at 7. But when he entered his guilty plea, the Court

had not yet decided on a sentence of any length and the United States had not filed its

5K1.1 motion. The plea agreement he signed, and acknowledged under oath in court, said

in Paragraph 2 that he understood the potential sentences to include, on Count 1 (the

§924(g) charge), a mandatory minimum of five years imprisonment, up to a maximum term

of life imprisonment, “consecutive to any term of imprisonment as to Count 2,” and, on

Count 2, a mandatory minimum term of five years and a maximum term of 40 years. See

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Doc. 52. Thus, when he pleaded guilty, Petitioner knew only that if he received the

minimum sentence on both counts (and there was no guarantee of that), he would get 120

months - more than the 98 months which he now claims would have caused him to reject

the plea offer. He also acknowledged in the plea agreement that no representations or

promises were being made to him as to the actual sentence, that he could not withdraw his

guilty plea based on the actual sentence, and that the extent to which the Court might

deviate from the minimum or guideline sentence range based on any 5K1.1 motion which

the United States might file was “solely [a] matter[] for determination by the Court.” Id.,

¶12. Under these circumstances, there is no credible claim to be made either that anything

Mr. Gilbert did or did not say during the plea process improperly influenced Petitioner’s

decision to plead guilty, or that Mr. Gilbert either could or should have done anything

more to obtain an even lower sentence than the Court imposed. 

The final portion of Petitioner’s claim relating to plea and sentencing appears to be

an assertion that he was induced to plead guilty based on advice from his attorney that

none of the drugs recovered from other locations or at other times would be counted as

relevant conduct for sentencing purposes. Petitioner alleges in his traverse that Mr. Gilbert

“told him that if he plead guilty to the Bill of Information he would not be held accountable

to the relevant conduct involved in the case....” Doc. 102, at 4. However, the PSR includes

a substantial amount of relevant conduct and that relevant conduct appears to have had

an impact on the way in which the Probation Office calculated the guideline range. 

Petitioner asserts that “the true offense conduct in this Case is only the Cultivation of

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Marijuana, which was only a 12-18 month offense, at the most.” Id.

What is missing from this argument is any recognition that because the drug charge

to which Petitioner pleaded guilty was the manufacture of 100 or more marijuana plants,

the bottom end of the guideline sentence range could not have been any less than 60

months. See USSG §5G1.1(b)(“Where a statutorily required minimum sentence is greater

than the maximum of the applicable guideline range, the statutorily required minimum

sentence shall be the guideline sentence”). Even if all the relevant conduct were excluded,

as noted above, the guideline range based on just the 184 marijuana plants would have

been 51-63 months, based on an adjusted offense level of 18 (as the Probation Office would

have calculated it, and as the Court accepted it) and a criminal history category of V. See

USSG Chapter 5, Part A (2013). Applying §5G1.1(b), the range for the drug offense would

become 60-63 months, not the 12-18 months which Petitioner suggests, and the aggregate

range would have then been 120-123 months. Petitioner still received a sentence

substantially below that range, and there is nothing in the record to demonstrate that had

the relevant conduct all been excluded, and had the Probation Office calculated the

sentencing range at 120-123 months instead, the Court would have reduced Petitioner’

sentence even more. 

Finally, even if Mr. Gilbert incorrectly advised Petitioner that no relevant conduct

would be taken into account, Petitioner’s claim of prejudice from such advice cannot be

reconciled with the plea agreement. Not only does that agreement contain no such

promise, it specifically alerted Petitioner to the fact that the United States would argue for

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a guideline calculation based on 16 firearms, 500 grams to 2 kilograms of cocaine, 5-20

grams of cocaine base, and 20-40 kilograms of marijuana. See Doc. 52, ¶8(a). Petitioner

signed that agreement, acknowledged it in open court, and agreed to the final paragraph

as well, which stated that there were no other promises, agreements, or conditions made

concerning the guilty plea. If that were not the case, Petitioner had the opportunity to

repudiate the plea agreement before he formally entered his plea. Therefore, when he

pleaded guilty based on the plea agreement, he could not have been relying on any prior

representation that the other relevant conduct would not be taken into account for

sentencing purposes. Cf. Ramos v. Rogers, 170 F.3d 560, 565 (6th Cir. 1999)(a proper plea

colloquy where defendant acknowledges receiving accurate information about something

he claims his attorney misled him about prevents the defendant “from claiming prejudice

under Strickland”). For these reasons, none of Petitioner’s ineffective assistance of counsel

claims concerning the plea sentencing process have merit.

3. Appeal

The claim concerning ineffective assistance of counsel with respect to an appeal is

not mentioned in Petitioner’s supporting memorandum, but he does refer to it in his

traverse, citing to Roe v. Ortega-Flores, 528 U.S. 470 (2000) for the proposition that when an

attorney is instructed to file a notice of appeal but fails to do so, that failure is ineffective

assistance of counsel per se. He asserts that he asked for a notice of appeal to be filed,

requested appointed counsel, and made an effort to obtain his transcripts while being

transported for imprisonment. Beyond those claims, however, he does not make any

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allegations concerning what Mr. Gilbert should or should not have done concerning his

appeal.

The Court, at Petitioner’s request, caused a notice of appeal to be filed on his behalf. 

See Doc. 77. The next entry on the docket is the Court of Appeals’ order dismissing the

appeal for want of prosecution. According to the Court of Appeals’ docket, Petitioner was

sent a letter on February 20, 2013 telling him that the appeal had been dismissed but that

he could either pay the appellate filing fee or move in the District Court for leave to

proceed in forma pauperis; failing that, his case would “remain disposed.” See Case No. 13-

3061, Doc. 12. The next document Petitioner filed, however, was the instant motion to

vacate, which was not received by this Court until October 28, 2013. Petitioner does not

allege that he was somehow prevented by Mr. Gilbert from paying the appellate filing fee,

or from pursuing a motion for leave to proceed in forma pauperis on appeal, nor does he

allege that such a motion would have been granted. His assertion that he asked for

appointed counsel on appeal, while not supported by the record, undercuts any claim he

might make that Mr. Gilbert had agreed to prosecute the appeal for him. Under these

circumstances, he cannot demonstrate either that counsel performed ineffectively or that

he was prejudiced by counsel’s performance. And because a notice of appeal was filed on

his behalf, Ortega-Flores is simply inapplicable. There is no merit to this portion of

Petitioner’s ineffective assistance of counsel claim.

B. Prosecutorial Misconduct

The primary thrust of the claim of outrageous prosecutorial conduct relates to

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the United States’ alleged threat to force Petitioner to plead guilty by telling him that if

he did not, he would almost immediately face additional charges, a longer sentence,

and the risk of having his family members indicted. According to the memorandum

filed in support of the motion, such tactics demonstrate bad faith on the part of the

prosecution and violated Petitioner’s right to due process. 

In response, the United States argues that any representations made by the

prosecutors concerning other charges and potentially longer sentences were true, as

evidenced by the indictment and charges which were dismissed in exchange for

Petitioner’s guilty plea. Counsel for the United States denies having made certain other

statements, but asserts that even if the statements were made, “the defendant has not

shown how he would have been entitled to relief, given the favorable Plea Agreement

that was reached in this case.” See Doc. 97, at 22.

The question of how far a prosecutor may legitimately go in plea negotiations is

a subject for some debate. But plea negotiations are designed to permit prosecutors to

“bargain” for a plea using, among other things, the leverage they possess to bring

greater charges against a defendant. The Supreme Court has endorsed this type of giveand-take negotiation, and held, in Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978), that a

“course of conduct engaged in by the prosecutor ... which no more than openly

presented the defendant with the unpleasant alternatives of forgoing trial or facing

charges on which he was plainly subject to prosecution, did not violate the Due Process

Clause of the Fourteenth Amendment.” Thus, “[a]lthough a defendant presented with

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the risk of a more severe punishment faces a difficult choice, this is permissible as a

reality in any ‘legitimate system which tolerates and encourages the negotiation of

pleas.’” United States v. Martin, 516 Fed. Appx. 433, 442 (6th Cir. Feb. 25, 2013), quoting

Bordenkircher, supra, at 364. See also United States v. Williams, 47 F.3d 658, 662 (4th Cir.

1995)(“Bordenkircher and [United States v.] Goodwin [, 457 U.S. 368 (1982)] have made

clear that a prosecutor, in the context of plea negotiations, can threaten to bring a more

severe indictment against a defendant to pressure him into pleading guilty”).

Petitioner has not shown that any of the statements about which he complains

were untrue. Prior to his pleading guilty to a two-count information, he had been

charged in a superseding indictment with fifteen separate counts of criminal conduct. 

Although it is unlikely that, if he had been convicted of all of those counts, he would

have received a sentence of 55 years in prison, the statutory maximum allowable for

those 15 counts would have been much longer than 55 years. He has also not shown

that the prosecutor lacked any reasonable basis for threatening to indict members of his

family. Finally, Petitioner disavowed under oath, at the plea hearing, any threats made

to him in order to induce his guilty plea. Even if he felt threatened by the prosecutor’s

statements, his plea was still voluntary and not induced by prosecutorial misconduct. 

As the court in United States v. Doe, 537 F. 3d 204, 213 (2d Cir. 2008) observed, even if a

“defendant may have been fearful of the consequences adverted to in the prosecutor's

statement, but his decision to plead guilty reflects his considered judgment to avoid

those consequences as well as a likely lifetime in prison. There is no legal requirement

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that the decision to plead guilty be an easy one.” This claim is without merit.

 C. Criminal History Score

In his third ground for relief, Petitioner argues that the Court miscalculated his

criminal history score. He makes much the same argument as his counsel made in the

sentencing memorandum filed before the Court imposed sentence. The United States

does not address this argument directly, but does cite Davis v. United States, 417 U.S.

333, 346 (1974) for the proposition that in a 2255 proceeding where a non-constitutional

legal error is asserted, “the appropriate inquiry was whether the claimed error of law

was ‘a fundamental defect which inherently results in a complete miscarriage of

justice...’”), quoting Hill v. United States, 368 U.S. 424, 28 (1962).

As the Court observed above, that is the standard applicable in this Circuit to

claims made in a §2255 proceeding that the sentencing guidelines were misapplied. See 

Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996). Such issues are normally reserved

for the direct appeal, and the failure either to take such an appeal or to raise the issues

in an appeal is a waiver of the claim. This Court has said that “[a] motion to vacate

under § 2255 is not a substitute for direct appeal” and that “[a]bsent manifest injustice

or special circumstances such as a change in the law, §2255 motions will be dismissed

summarily if they raise claims that were or might have been asserted on direct review.” 

United States v. Bea, 2007 WL 1193254, *2 (S.D. Ohio Apr. 20, 2007). Petitioner has not

shown any manifest injustice or a change in the law; he simply disagrees with the way

this Court determined his criminal history category score. That claim cannot be raised

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or addressed on its merits in a motion filed under §2255. 

D. Sentencing Error

Petitioner’s final claim is that the Court erred in the sentencing process. As he

explains this claim in his supporting memorandum, he contends that the Court treated

the sentencing guidelines as mandatory rather than advisory and also erred in

sentencing him based upon his admission to possession of an inoperable firearm; he

apparently contends that the Court must have found the firearm operable in order to

impose a sentence under §924(c) but that only a jury could make that finding.

Leaving aside for the moment the question of whether any portion of this claim

was waived because it was not presented on direct appeal, the claim has no factual

basis. The Court did not treat the guidelines as mandatory. Had it done so, Petitioner

would have been sentenced in the range calculated by the Probation Office and adopted

by the Court, i.e. 190 to 222 months. The sentence on Count One is not really a

guideline sentence at all; it is a statutory sentence which is, unlike a guideline sentence,

mandatory. See United States v. Wimbley, 553 F.3d 455, 462 (6th Cir. 2009)(a sentence “set

by a statutory mandatory minimum, not the advisory Sentencing Guidelines” is not

subject to the Court’s discretion to impose a shorter sentence). On Count Two, the

Court clearly exercised its discretion not only to give a below-guideline sentence, but to

reduce the sentence below the statutory minimum based on the United States’ 5K1.1

motion. 

Further, as the Court explained above, the §924(c) sentence did not require a

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finding that the firearm in question was operable. Petitioner admits that he stipulated

to possessing a firearm. Whether it was operable or not is irrelevant to his sentence. 

There was no impermissible fact-finding engaged in by the Court in imposing the

statutory sentence required by §924(c). Thus, there is no basis for granting relief on this

claim. 

III. Recommended Decision

For the reasons stated above, it is recommended that petitioner’s motion to

vacate, set aside, or correct his sentence pursuant to 28 U.S.C. §2255 be DENIED. It is

further recommended that the following motions be denied as well: Doc. 103 (Motion

for Default Judgment), Doc. 108 (Motion for a copy of documents), and Doc. 109 (Rule

60(b) motion). Finally, to the extent that either Petitioner’s prior motion to disqualify

judges (Doc. 106) or his Rule 60(b) motion request the recusal of the undersigned

Magistrate Judge, the Court finds no basis for that request as it pertains to the

Magistrate Judge, who is assigned to this case only for purposes of issuing a Report and

Recommendation as to the motion to vacate, and who had no involvement in the

sentencing issues which form the basis for the motion to disqualify. Any pending

request for disqualification of the Magistrate Judge is therefore DENIED.

IV. Procedure on Objections 

 If any party objects to this Report and Recommendation, that party may, within

fourteen days of the date of this Report, file and serve on all parties written objections to

those specific proposed findings or recommendations to which objection is made,

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together with supporting authority for the objection(s). A judge of this Court shall

make a de novo determination of those portions of the report or specified proposed

findings or recommendations to which objection is made. Upon proper objections, a

judge of this Court may accept, reject, or modify, in whole or in part, the findings or

recommendations made herein, may receive further evidence or may recommit this

matter to the magistrate judge with instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the district judge review

the Report and Recommendation de novo, and also operates as a waiver of the right to

appeal the decision of the District Court adopting the Report and Recommendation. See

Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

 /s/ Terence P. Kemp 

 United States Magistrate Judge

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